The Trade Union Act 2016 was supposed to reduce strike action still further from current historic lows. Instead, it looks as if the length of individual strikes will increase, creating more days “lost” per strike.
At the Bank of England, Unite union members in the maintenance and security departments are to go on strike for four days at the end of July to try to end the continued imposition of below-inflation pay rises. The union has told the Bank’s governor, Mark Carney, that he can “no longer turn a blind eye to what is happening on his own patch” and is calling on the Bank to agree to talks on a pay deal which might avert the first walkout in more than 50 years.
Under the Trade Union Act, unions now have to pass two new thresholds to gain a lawful mandate for strike action. In addition to getting a simple majority of those voting for action, the turnout has to be at least 50%. In a number of sectors deemed “essential”, such as transport and education, all those voting for action must also represent 40% of all those entitled to vote. In other words, non-voters are counted as “no” votes.
The changes have delivered a couple of significant defeats for the unions so far – for UNISON local government workers in Scotland and RMT members on the London Underground. And it’s not yet clear whether more or less ballots for action are now being organised. We won’t know that until the figures for 2016 are published by the government next summer.
Fight or flight
But what is clear so far is that among the ballots that have resulted in mandates for action, the predominant strategy of one-day strikes - or a series of one-day strikes - is coming to an end.
The strike at the Bank of England is only the most recent case to gain prominence. At British Airways, fellow members of the Unite union have just begun a 16-day strike while other Unite members at Manchester housing repair company, Mears, have announced they will strike for four weeks, which started last Saturday.
Workers at both British Airways and Mears have already taken considerable strike action. There are dozens of other examples of action taken by Unite, backed by strike pay from the union’s own £35m fund. There is also mounting evidence elsewhere – from the education unions (EIS, NUT, UCU) to the PCS civil servants’ union that this clear pattern is emerging.
The three cited Unite examples of strike all have quite different causes: pay at the Bank of England, victimisation at British Airways and new contracts at Mears. But the new law is making them act in a very similar fashion. This is because of two other important parts of the Trade Union Act. First, unions are required to give 14 days’ notice of action to employers – up from seven. And the length of a lawful mandate is capped at six months, which can be increased to nine but only with the agreement of the employer. Previously, there was no cap on the length of the mandate.
So, in order for action to be effective, it has to be more hard-hitting because employers have longer to prepare for it. This means unions are front-loading their action into longer and more concentrated actions in smaller time frames. They are also doing this because they know they have to get their skates on. Unions cannot afford to have their mandates eroded by employers that play for time by stringing out negotiations. The clock is always ticking in their heads towards the six-month expiry date.
There is also evidence that some workers have decided to increasingly ignore the new law by taking unofficial, unballoted action. Wildcat action has been seen at the Royal Mail and among hospital workers in London. This has the element of surprise and the nature of the action is not limited by the balloting restrictions. Of course, it is unlawful, but so far no one has been sacked for organising such action – as they can be under the Employment Act 1990.
Even if the Trade Union Act does lead to fewer strike ballots, fewer votes for strikes and fewer strikes themselves, it has already not only lengthened the duration of those strikes that do occur but it has also made them more difficult to resolve because it has forced union members to act in a more assertive and aggressive manner.
All this was entirely predictable. During public consultation on the new Act in 2015, human resources professional body, the Chartered Institute of Professional Development (CIPD), warned the new provisions were always likely to “harden attitudes”. In truth, this is exactly what happens when a government introduces an act to solve a problem that does not actually exist, and for which there is no public demand.